(Posted on November 20, 2008) On December 11, 2007 the Competition Bureau published a study entitled "Self-Regulated Professions: Balancing Competition and Regulation". One of the chapters of the Study deals with the regulation of the legal profession. The Federation of Law Societies of Canada and its member law societies have given careful consideration to the Study and continue to do so as part of their activities. Among the assertions made by the Competition Bureau which underpin its rationale for the Study, is that Canada's professions are significantly less productive than their American counterparts and that the current regulatory landscape for Canadian professional service providers excessively and unjustifiably inhibits competition. As the legal profession is among those singled out in the Study, the Federation thought it helpful to explore the basis of these assertions. To that end, respected legal and economic academics Edward Iacobucci and Michael Trebilcock, both professors at the Faculty of Law at the University of Toronto, reviewed the Study and authored a paper entitled "Self-Regulation and Competition in Ontario's Legal Services Sector: An Evaluation of the Competition Bureau's Report on Competition and Self-Regulation in Canadian Professions". It will be submitted for publication by the professors in the near future in order to further academic discussion of these matters. You can download their paper here. In their paper, the professors make a number of points which are worth highlighting. First, they state that the evidence on which the Bureau bases its analysis of productivity is insufficiently targeted to draw any meaningful inference and could, in fact, be evidence of greater competition in Canada. Second, they point out that inferences about the state of competition in professional services cannot be drawn with any confidence from the labour productivity results relied on by the Bureau and they question the Bureau's conclusion that there is a link between the alleged lower productivity and self-regulation. Third, they assert that not only is there no undue concentration of legal services markets but an analysis of barriers to entry further supports the conclusion that legal services markets are robustly competitive. Finally, the professors conclude that the test which should be applied by law societies in regulating the legal profession is whether, in pursuing legitimate non-competition-related objectives, the rules and regulations restrict competition only as much as is necessary in order to achieve those objectives. In accordance with their mandates to regulate members of the legal…
(Posted on November 17, 2008) The Federation of Law Societies of Canada is pleased to announce that Stéphane Rivard, Ad. E., of Montreal has been named as President of the Federation for a one year term. He had previously been Vice President and President-elect. The decision was made at a meeting of the Federation Council on September 18, 2008, during which Council also named John A. Campion of Toronto as Vice President and President-elect and elected Ronald J. MacDonald, Q.C. of Antigonish, Nova Scotia as Vice President. Michael W. Milani, Q.C., becomes Past-President of the Federation. Their terms of office continue until November 15, 2009.
Posted on September 24, 2008 The Federation of Law Societies of Canada has launched a national consultation on issues relating to the criteria for approving common law degrees for the purpose of entry into bar admission programs in Canada. A comprehensive consultation paper prepared by the Federation's Task Force on the Canadian Common Law Degree canvassing the issues and exploring possible approaches to approval of law degrees has been circulated to a number of national and provincial legal organizations, law deans and legal educators and is available here. The Task Force was established in June 2007 to consider a number of issues related to legal education and to make recommendations for the consideration of and possible adoption by member law societies. In particular the Task Force was asked to, review the criteria currently in place for approval of a LL.B/ J.D. law degree for the purposes of entrance to law societies' bar admission/ licensing programs and determine whether modifications are recommended; if modifications are found to be necessary, propose a national standard for the approved LL.B./J.D. degree; and consider these matters in relation to the existing criteria for review of the credentials of internationally trained applicants and those with civil law degrees from Quebec by the Federation's National Committee on Accreditation. The Task Force is chaired by John J.L. Hunter, Q.C., President of the Law Society of British Columbia. The other members of the Task Force, representing law societies from across Canada, are Susan Barber, Babak Barin, Professor Vern Krishna C.M., Q.C., Brenda Lutz, Douglas A. McGillivray, Q.C., Grant Mitchell, Q.C., Donald F. Thompson, Q.C., Alan D. Treleaven and Catherine S. Walker, Q.C. The Federation is most interested in receiving input on the issues raised and questions asked in the consultation paper. Your written comments are requested by December 15, 2008. Please send comments to the attention of: Federation of Law Societies of Canada Task Force on the Canadian Common Law Degree c/o Sophia Sperdakos, Policy Counsel Law Society of Upper Canada 130 Queen Street West Toronto, Ontario, M5H 2N6
(Posted on July 18, 2008) In a unanimous decision released on July 17th, 2008 the Supreme Court of Canada rejected the claim by the Privacy Commissioner that it has the right to review documents over which solicitor-client privilege is claimed to determine whether the claim is justified. In dismissing the appeal in Privacy Commissioner of Canada v. Blood Tribe Department of Health the Court accepted the principal arguments made by the Federation about the need to protect solicitor-client privilege from encroachment. Stating that the determination of the validity of a claim of privilege is a role reserved to the courts, the Supreme Court reiterated its view that solicitor-client privilege must be as close to absolute as possible and may be abrogated by Parliament in legislation only where done so explicitly. The Supreme Court of Canada decision is available here. (2008 SCC 44,  2 SCR 574 CanLII) The Federation’s factum is available here.
Posted on March 31, 2008 The Federation of Law Societies of Canada has taken another step to ensure lawyers and Quebec notaries are at the forefront of the fight against money laundering by adopting a model rule on client identification, verification and record keeping. The new "know-your-client" rule outlines the steps lawyers and Quebec notaries must take, and the records they must keep, to verify a client's identity. These actions will help members of the legal profession determine whether a client is attempting to use them to improperly transfer funds. All Canadian law societies have undertaken to adopt local rules mirroring the substance of the model rule as soon as possible. The Federation’s Model Rule is available here. (December 2008 version)
(Posted on February 22, 2008) Recent submissions filed by the Federation at the Air India inquiry focused on the need for amendments to the Canada Evidence Act (“CEA”). The Federation called for codification of the use of Special Advocates in hearings to determine whether the disclosure of information in a proceeding would "be injurious to international relations or national defence or national security." The Federation’s submissions are available here.
(Posted on February 21, 2008) The Federation of Law Societies appeared in the Supreme Court of Canada on February 21, 2008 as an intervenor in the case of Privacy Commissioner of Canada v. Blood Tribe Department of Health. The Federation argued against the appellant's claim that the Privacy Commissioner has the power to compel production of documents protected by solicitor-client privilege to verify a claim of privilege being asserted under the Personal Information Protection and Electronic Documents Act ("PIPEDA"). The Federation was represented in the proceedings by Bruce T. MacIntosh and Angus Gibbon of New Glasgow, Nova Scotia and Garner Groome of the Law Society of Alberta. The Federation’s factum is available here.